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Comments on the Water Services (Amendment) Bill 2011 – Septic Tanks

Last week the Irish Government published the draft legislation to address the issue of septic tanks and other on-site wastewater treatment systems. This amendment to the Water Services Act 2007 has been introduced to make Ireland compliant with a European Court of Justice ruling in October 2009 where the Court found that Ireland had failed to fulfil its obligations regarding domestic waste waters.

There has been a lot of thought and consultation behind this new piece of legislation and it must be hoped that the European Commission will accept that it meets the State’s obligations to its people. It must also be seen as a fair way of managing the responsibilities and obligations of those that own such septic tanks.

Indeed, this is a piece of legislation that will directly affect up to 1.5 million Irish people, largely living in rural Ireland. It is well documented that there are almost half a million on-site wastewater treatment systems in Ireland and there are almost three (3) people on average living in every Irish home. Therefore, the bill deserves close and balanced scrutiny by the Houses of the Oireachtas. There are a few aspects of the bill that arise interest; and they largely surround the funding model. The debate will not be helped by those that rush to describe any new charge as a “stealth tax” just because it is new and they perceive that it will not be welcomed by those that have to pay. No new charge is welcomed; but paying directly for a clearly defined service is a lot better than paying indirectly for a promise that never materialises.

The new bill is clear in some respects. There will be a €50 (max) charge to be paid (every five years) by the property owner to register his or her septic tank. That money will be used by the local authority to cover its costs. A county council might expect to get between €150,000 and €600,000 per annum on this basis, depending on the number of septic tanks in the county (excluding cities that have far fewer septic tanks).

It does beg the question as to why we need 34 Registers for septic tanks; one in each local authority. Some of the City Councils will get no more than €20,000 per annum to operate this system, so one would assume that they at least would piggy-back on a neighbouring county council’s register. Indeed, one would expect that the money would go a lot further if there was just one national register. It would also eliminate the risk of variations in the detail of local registers that would just add to cost for the inspections and introduce the risk of legal challenge.

Each inspector will have to pay a registration fee of €1,000 (max), and will have to pay the same fee every time they re-register. This money is to cover the costs of the EPA; largely in the preparation and control of the National Inspection Plan. It is not clear how often the Inspectors will have to re-register or how many Inspectors will be allowed on the Register. Therefore, it is not clear how much revenue will accrue to the EPA.

So how much will this cost somebody who wants to be an Inspector? If they have to pay a registration fee of €1,000, plus carry professional indemnity insurance of €1,500 (approximately), and attend a certified training course (est. €2,500), then it is going to cost at least €5,000 to become an Inspector, and between €1,500 and €2,500 annually to renew registration. This is a considerable burden and one would want to be confident that the investment of time and money would reap a reward.

Unfortunately, the bill does not give any detail on how the Inspectors are to be engaged by the EPA or local authorities for individual inspections. Once an Inspector is on the Register will they be required to quote fees for individual assignments? How will that fee be determined if some Inspections may be purely visual and others may require opening-up works or laboratory testing of samples? If an Inspector is on the Register will they be guaranteed a certain minimum amount of work?

Interestingly, the fee for a re-inspection is identified as €200, but this appears to be quite low in the context of the potential requirements of a reinspection. Subsections (1)(a) to (1)(i) detail the potential scope of an inspection, including surveys, excavations, monitoring, testing of samples, etc. There is no way that extent of work can be done for €200 or anything like it; and if that is the scope of an inspection, then a re-inspection will hardly be less detailed. Therefore, the €200 fee required of the property owner can’t be seen as being anything other than a partial contribution to the costs.

So who will pay for the costs of the Inspections? It is clear that the Inspectors will be engaged by either the EPA or the local authorities and assigned to conduct inspections in accordance with the National Inspection Plan. Cue jokes about what is to be found in the NIP. Certainly this aspect of the bill appears to have few threads of clothing. Where is the funding stream for the inspections? It appears that the Exchequer intends to fund the inspections, but to what extent?

Finally, we return to the registration charge of €50 every five (5) years for the property owner. Subsection 3 provides that the application for registration must contain any further information that may be specified by the Minister. It must appear likely that this further information would include some basic details about the septic tank (or other system) and any maintenance agreements or records of desludging. That information may be easily available at no extra cost for those that regularly maintain their septic tanks, but will be a new burden for those that have not appreciated the true costs of a septic tank heretofore.

Certainly the inspection system will uncover septic tanks that are not functioning correctly and in need of repair or replacement. It may also identify environmental damage either inside the property boundaries or within the wider environment. The inspection may indicate a direct and immediate threat to the health and welfare of neighbouring properties – and there does not appear to be an obligation to inform those persons immediately along with the property owner.

There is no recognition in this bill that certain defects in on-site wastewater treatment systems may be outside the reasonable ability of the property owner to address without help. It would be useful if a limited grant scheme could be introduced for those that are in financial need and cooperate in all other respects with the registration process and the inspections.

In summary, this new piece of legislation is hardly a stealth tax, but neither is it completely transparent about the funding model that underpins the legislation. It is a positive step towards meeting our obligations to our people and our environment, but it begs for a fair and transparent funding model for all of those that use water services, be they in the countryside or in the cities.